Edwards v. Canada (Attorney General)
Encyclopedia
Edwards v. Canada [1930] A.C. 124 – also known as the Persons Case – is a famous Canadian
and British
constitutional case where it was first decided that women were eligible to sit in the Canadian Senate
. The case, put forward by a group of women known as the Famous Five
, went all the way to the Judicial Committee of the Imperial Privy Council
, then the court of last resort for Canada, and was a landmark case in at least two respects. The Persons Case established that Canadian women were eligible to be appointed senators and more generally, that Canadian women had the same rights as Canadian men with respect to positions of political power. Second, it established what came to be known as the "living tree doctrine
", which is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.
and a group of women attempted to attend a trial of Alberta women accused of prostitution. She, and the rest of the group of women, were ejected from the trial on the grounds that the testimony was "not fit for mixed company." Emily Murphy was outraged and appealed to Charles Wilson Cross, the Attorney General of Alberta, arguing "If the evidence is not fit to be heard in mixed company, then ... the government.. [must] set up a special court presided over by women, to try other women." Much to her surprise, the minister not only agreed, but appointed her as the magistrate. However, on her first day on the job, her authority to preside as a judge was challenged by a lawyer on the basis that women were not "persons" under the British North America Act
. In 1917, the Supreme Court of Alberta ruled that women were persons, thus settling the issue for Alberta, but not for the rest of Canada. Sometime later, Emily Murphy decided to test the issue in the rest of Canada by allowing her name to be put forward to Robert Borden
, the Canadian Prime Minister, as a candidate for Canadian Senator. He rejected her on the familiar grounds that women were not "persons". In response to a petition signed by nearly 500,000 Canadians that asked that she be appointed to the Senate, Borden stated that he was willing to do so, but could not on the basis of an 1876 British common law ruling that stated that "women were eligible for pains and penalties, but not rights and privileges."
, Nellie Mooney McClung, Louise Crummy McKinney
, and Henrietta Muir Edwards) joined her for tea at her house. The five women, later to be known as the Famous Five
(or the Valiant Five) all signed the petition, asking the federal government to refer two questions relating to women's status to the Supreme Court of Canada
.
The two questions were:
to the Supreme Court of Canada to clarify legal and constitutional issues.. Ernest Lapointe
, who was Minister of Justice in the government of William Lyon Mackenzie King
, reviewed the petition and recommended to federal Cabinet that the questions be narrowed down from two to one, relating to the appointment of women to the federal Senate of Canada under section 24 of the British North America Act, 1867 (now known as the Constitution Act, 1867
).
On October 19, 1927, the Cabinet submitted this question for clarification to the Supreme Court of Canada:
Emily Murphy, speaking for the five petitioners, originally objected to this change in the wording of the question, which she described in a letter to the Deputy Minister of Justice as "...a matter of amazement and perturbation to us." On behalf of the petitioners, she asked that the Government withdraw the single question and refer the original two questions to the Supreme Court, along with a new, third question:
However, after further correspondence with the Deputy Minister and consultation with their lawyer, Emily Murphy advised the Deputy Minister that they accepted the single question posed by the Cabinet.
, Chief Justice of Canada, wrote the majority judgment, with Lamont J. and Smith J. concurring. Mignault J. and Duff J. wrote separate concurring opinions. Anglin C.J.C. began by reviewing the provisions relating to the appointment of Senators under the Constitution Act, 1867. Section 23 of the Act sets out the qualifications for a Senator. Senators must be at least thirty years old, must be a British subject, must own real and personal property with a net value of at least $4,000, and must live in the Province for which they are appointed. Section 23 uses the pronoun "He" to describe these qualifications, which contributed to the argument that only men could be appointed to the Senate.
Section 24 then provides:
The question for the Court was whether women could be "qualified persons" under s. 24 and thus eligible to be appointed to the Senate. Ultimately, all five Justices held that the meaning of "qualified persons" did not include women. The Court interpreted the phrase "qualified person" based on their understanding of the intention of the drafters of the Constitution Act, 1867
, despite acknowledging that the role of women in society had changed since that date. In 1867, women could not sit in Parliament. Thus, if there were to be an exception to the practice from that period, it would have to be explicitly legislated. The Court held that the common law incapacity of women to exercise public functions excluded women from the class of "qualified persons" under section 24 of the Constitution Act, 1867.
A common misinterpretation of the case is that the Supreme Court held that women are not persons. For example, the website of Status of Women Canada, a federal government organization, states that "After five weeks of debate and argument the Supreme Court of Canada decided that the word 'person' did not include women."
On the contrary, the majority judgment of the Supreme Court of Canada noted explicitly that "There can be no doubt that the word 'persons' when standing alone prima facie includes women." The Court also made this point clear in its formal judgment. The Court did not respond directly to the question as posed by the federal Cabinet. Instead, the Court gave its own interpretation of the question and then answered that re-formulated question:
However, the Supreme Court at that time was not the final arbiter of constitutional questions in Canada.
, Viscount Sankey
, writing for the committee, found that the meaning of "qualified persons" could be read broadly to include women, reversing the decision of the Supreme Court. The landmark ruling was handed down on October 29, 1929. He held that "[t]he exclusion of women from all public offices is a relic of days more barbarous than ours," and that "to those who ask why the word ["person"] should include females, the obvious answer is why should it not." Finally, he wrote:
From this the approach became known as the living tree doctrine
which requires "large and liberal" interpretation.
Although the ruling was to be of crucial importance for Canadian women in the long term, it did not result in Emily Murphy
being appointed to the Senate. However, it was only a year later, on February 15, 1930, that the first woman, Cairine Reay Wilson
, was appointed to the Senate.
Nearly 80 years later, in October 2009, the Senate voted posthumously to name the Five Canada's first "honorary senators."
Emily Murphy's house where the tea party occurred is now on the campus of the University of Alberta, and houses the Student Legal Services.
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and British
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
constitutional case where it was first decided that women were eligible to sit in the Canadian Senate
Canadian Senate
The Senate of Canada is a component of the Parliament of Canada, along with the House of Commons, and the monarch . The Senate consists of 105 members appointed by the governor general on the advice of the prime minister...
. The case, put forward by a group of women known as the Famous Five
The Famous Five (Canada)
The Famous Five or The Valiant Five were five Canadian women who asked the Supreme Court of Canada to answer the question, "Does the word 'Persons' in Section 24 of the British North America Act, 1867, include female persons?" in the case Edwards v...
, went all the way to the Judicial Committee of the Imperial Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, then the court of last resort for Canada, and was a landmark case in at least two respects. The Persons Case established that Canadian women were eligible to be appointed senators and more generally, that Canadian women had the same rights as Canadian men with respect to positions of political power. Second, it established what came to be known as the "living tree doctrine
Living tree doctrine
In Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times....
", which is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.
Background
In 1916, Emily MurphyEmily Murphy
Emily Murphy was a Canadian women's rights activist, jurist, and author. In 1916, she became the first woman magistrate in Canada, and in the British Empire...
and a group of women attempted to attend a trial of Alberta women accused of prostitution. She, and the rest of the group of women, were ejected from the trial on the grounds that the testimony was "not fit for mixed company." Emily Murphy was outraged and appealed to Charles Wilson Cross, the Attorney General of Alberta, arguing "If the evidence is not fit to be heard in mixed company, then ... the government.. [must] set up a special court presided over by women, to try other women." Much to her surprise, the minister not only agreed, but appointed her as the magistrate. However, on her first day on the job, her authority to preside as a judge was challenged by a lawyer on the basis that women were not "persons" under the British North America Act
British North America Acts
The British North America Acts 1867–1975 are the original names of a series of Acts at the core of the constitution of Canada. They were enacted by the Parliament of the United Kingdom and the Parliament of Canada. In Canada, some of the Acts were amended or repealed by the Constitution Act, 1982....
. In 1917, the Supreme Court of Alberta ruled that women were persons, thus settling the issue for Alberta, but not for the rest of Canada. Sometime later, Emily Murphy decided to test the issue in the rest of Canada by allowing her name to be put forward to Robert Borden
Robert Borden
Sir Robert Laird Borden, PC, GCMG, KC was a Canadian lawyer and politician. He served as the eighth Prime Minister of Canada from October 10, 1911 to July 10, 1920, and was the third Nova Scotian to hold this office...
, the Canadian Prime Minister, as a candidate for Canadian Senator. He rejected her on the familiar grounds that women were not "persons". In response to a petition signed by nearly 500,000 Canadians that asked that she be appointed to the Senate, Borden stated that he was willing to do so, but could not on the basis of an 1876 British common law ruling that stated that "women were eligible for pains and penalties, but not rights and privileges."
The Petition to the Federal Government
Some years later, Emily Murphy asked four other prominent Albertan women to join her in a petition to the federal government on the issue of women's status. On August 27, 1927, the four other women (Irene Marryat ParlbyIrene Parlby
Irene Parlby was a Canadian women's farm leader, activist and politician.Born in London, England, Parlby came to Canada in 1896. In 1913, Parlby helped to found the first women's local of the United Farmers of Alberta. In 1921, she was elected to the Alberta Legislature for the riding of Lacombe,...
, Nellie Mooney McClung, Louise Crummy McKinney
Louise McKinney
Louise McKinney née Crummy was a provincial politician and women's rights activist from Alberta, Canada. She was the first woman sworn in to the Legislative Assembly of Alberta and the first woman elected to a legislature in Canada and in the British Empire...
, and Henrietta Muir Edwards) joined her for tea at her house. The five women, later to be known as the Famous Five
The Famous Five (Canada)
The Famous Five or The Valiant Five were five Canadian women who asked the Supreme Court of Canada to answer the question, "Does the word 'Persons' in Section 24 of the British North America Act, 1867, include female persons?" in the case Edwards v...
(or the Valiant Five) all signed the petition, asking the federal government to refer two questions relating to women's status to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
.
The two questions were:
"I. Is power vested in the Governor-General in Council of Canada, or the Parliament of Canada, or either of them, to appoint a female to the Senate of Canada?
II. Is it constitutionally possible for the Parliament of Canada under the provisions of the British North America Act, or otherwise, to make provision for the appointment of a female to the Senate of Canada?"
The Reference to the Supreme Court
In Canada, the federal government has the power to refer questionsReference question
In Canadian law, a Reference Question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation....
to the Supreme Court of Canada to clarify legal and constitutional issues.. Ernest Lapointe
Ernest Lapointe
Ernest Lapointe, PC was a Canadian lawyer and politician.-Education, early career:Lapointe earned his law degree from Laval University...
, who was Minister of Justice in the government of William Lyon Mackenzie King
William Lyon Mackenzie King
William Lyon Mackenzie King, PC, OM, CMG was the dominant Canadian political leader from the 1920s through the 1940s. He served as the tenth Prime Minister of Canada from December 29, 1921 to June 28, 1926; from September 25, 1926 to August 7, 1930; and from October 23, 1935 to November 15, 1948...
, reviewed the petition and recommended to federal Cabinet that the questions be narrowed down from two to one, relating to the appointment of women to the federal Senate of Canada under section 24 of the British North America Act, 1867 (now known as the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
).
On October 19, 1927, the Cabinet submitted this question for clarification to the Supreme Court of Canada:
"Does the word 'Persons' in section 24 of the British North America Act, 1867, include female persons?"
Emily Murphy, speaking for the five petitioners, originally objected to this change in the wording of the question, which she described in a letter to the Deputy Minister of Justice as "...a matter of amazement and perturbation to us." On behalf of the petitioners, she asked that the Government withdraw the single question and refer the original two questions to the Supreme Court, along with a new, third question:
"3. If any statute be necessary to qualify a female to sit in the Senate of Canada, must this statute be enacted by the Imperial Parliament, or does power lie with the Parliament of Canada, or the Senate of Canada?"
However, after further correspondence with the Deputy Minister and consultation with their lawyer, Emily Murphy advised the Deputy Minister that they accepted the single question posed by the Cabinet.
The Opinion of the Supreme Court of Canada
The Supreme Court of Canada heard the case on March 14, 1928, and issued its decision on April 24, 1928. Francis Alexander AnglinFrancis Alexander Anglin
Francis Alexander Anglin PC was Chief Justice of Canada from 1924 until 1933.Born in Saint John, New Brunswick, one of 9 children of Parliamentarian Timothy Anglin, and elder brother to the renowned stage actress, Margaret Anglin, he received a Bachelor of Arts degree from the University of...
, Chief Justice of Canada, wrote the majority judgment, with Lamont J. and Smith J. concurring. Mignault J. and Duff J. wrote separate concurring opinions. Anglin C.J.C. began by reviewing the provisions relating to the appointment of Senators under the Constitution Act, 1867. Section 23 of the Act sets out the qualifications for a Senator. Senators must be at least thirty years old, must be a British subject, must own real and personal property with a net value of at least $4,000, and must live in the Province for which they are appointed. Section 23 uses the pronoun "He" to describe these qualifications, which contributed to the argument that only men could be appointed to the Senate.
Section 24 then provides:
Summons of Senator
24. The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.
The question for the Court was whether women could be "qualified persons" under s. 24 and thus eligible to be appointed to the Senate. Ultimately, all five Justices held that the meaning of "qualified persons" did not include women. The Court interpreted the phrase "qualified person" based on their understanding of the intention of the drafters of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
, despite acknowledging that the role of women in society had changed since that date. In 1867, women could not sit in Parliament. Thus, if there were to be an exception to the practice from that period, it would have to be explicitly legislated. The Court held that the common law incapacity of women to exercise public functions excluded women from the class of "qualified persons" under section 24 of the Constitution Act, 1867.
A common misinterpretation of the case is that the Supreme Court held that women are not persons. For example, the website of Status of Women Canada, a federal government organization, states that "After five weeks of debate and argument the Supreme Court of Canada decided that the word 'person' did not include women."
On the contrary, the majority judgment of the Supreme Court of Canada noted explicitly that "There can be no doubt that the word 'persons' when standing alone prima facie includes women." The Court also made this point clear in its formal judgment. The Court did not respond directly to the question as posed by the federal Cabinet. Instead, the Court gave its own interpretation of the question and then answered that re-formulated question:
"The formal judgment of the court was as follows:
Understood to mean 'Are women eligible for appointment to the Senate of Canada,' the question is answered in the negative."
However, the Supreme Court at that time was not the final arbiter of constitutional questions in Canada.
The Name of the Case
The five women then took the case on appeal to the Judicial Committee of the Privy Council, at that time the court of last resort for the British Empire. Since their names were listed on the appeal documents in alphabetical order, Henrietta Muir Edwards was listed as the first appellant, leading to the case being entered as Edwards v. Canada (Attorney General). However, it is more generally known as the Persons Case, from the subject matter.Ruling
The Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, Viscount Sankey
John Sankey, 1st Viscount Sankey
John Sankey, 1st Viscount Sankey GBE, KStJ, PC, KC was a prominent British lawyer, judge and Labour politician, famous for many of his judgments in the House of Lords...
, writing for the committee, found that the meaning of "qualified persons" could be read broadly to include women, reversing the decision of the Supreme Court. The landmark ruling was handed down on October 29, 1929. He held that "[t]he exclusion of women from all public offices is a relic of days more barbarous than ours," and that "to those who ask why the word ["person"] should include females, the obvious answer is why should it not." Finally, he wrote:
"[T]heir Lordships have come to the conclusion that the word "persons" in sec. 24 includes members both of the male and female sex and that, therefore, ... women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly."
Living tree doctrine
To arrive at his conclusion, Sankey proposed an entirely new approach to constitutional interpretation that has since become one of the core principles of constitutional law in Canada.The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention...
Their Lordships do not conceive it to be the duty of this Board—it is certainly not their desire—to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs."
From this the approach became known as the living tree doctrine
Living tree doctrine
In Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times....
which requires "large and liberal" interpretation.
Aftermath
Emily Murphy
Emily Murphy was a Canadian women's rights activist, jurist, and author. In 1916, she became the first woman magistrate in Canada, and in the British Empire...
being appointed to the Senate. However, it was only a year later, on February 15, 1930, that the first woman, Cairine Reay Wilson
Cairine Wilson
Cairine Reay Mackay Wilson was Canada's first female senator.-Early life:Born Cairine Reay Mackay in Montreal, she was the daughter of Jane Mackay and Robert Mackay, a Liberal Senator and personal friend of Sir Wilfrid Laurier. She attended Elmwood School and was "head girl" in her graduating year...
, was appointed to the Senate.
Nearly 80 years later, in October 2009, the Senate voted posthumously to name the Five Canada's first "honorary senators."
Legacy
An annual award, the Governor General's Awards in Commemoration of the Persons Case, was created in 1979 and continues to be presented to five individuals each year to honour distinguished achievements that advance the equality of girls and women in Canada.Emily Murphy's house where the tea party occurred is now on the campus of the University of Alberta, and houses the Student Legal Services.
See also
- List of Judicial Committee of the Privy Council cases
- List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
- Robert J. Sharpe & Patricia I. McMahon. The Persons Case: The Origins and Legacy of the Fight for Legal Personhood. Toronto: Osgoode Society for Canadian Legal History, 2007.